Quiero saber acerca de...

Federal Register / Vol. 86, No. 134 / Friday, July 16, 2021 / Rules and Regulations FURTHER INFORMATION CONTACT

paragraph.
II. Discussion A. Overview This rule implements Executive Order 13992, Revocation of Certain Executive Orders Concerning Federal Regulation 86 FR 7049, by revoking the Departments regulations at 28 CFR
50.26 and 50.27. Going forward, the Departments approach to those matters will be governed by a new Attorney General Memorandum being issued concurrently with this rule.

jbell on DSKJLSW7X2PROD with RULES

B. BackgroundExisting Regulations and Memoranda In 2020, the Department of Justice published two interim final rules IFRs, rules, or regulations that regulate the issuance and use of guidance documents by the Department and its components. The first rule, which was entitled Prohibition on the Issuance of Improper Guidance Documents Within the Justice Department and added a new 28 CFR
50.26, was published August 19, 2020
85 FR 50951. That rule emphasized that guidance documents generally may not be used create rights or obligations binding on persons or entities outside the Executive Branch. 28 CFR
50.26a4. It also instituted compliance procedures requiring Department components to include disclaimers and other specific language in all guidance documents. Id. 50.26b.
The first rule was followed by a second, entitled Processes and Procedures for Issuance and Use of Guidance Documents and published on October 7, 2020 85 FR 63200, which expanded on aspects of the first rule by adding a new 28 CFR 50.27.
Briefly, this second rule set forth processes and procedures governing the review, clearance, and issuance of guidance documents, and included limitations on the use of guidance documents in criminal and civil enforcement actions brought by the Department.
Those two regulations published in 2020 were developed from, and promulgated pursuant to, three documents. The first was a November 16, 2017, memorandum issued by Attorney General Sessions, entitled Prohibition on Improper Guidance Documents the November 2017
Memorandum. The November 2017
Memorandum acknowledged the importance of guidance documents but also stated that guidance may not be used as a substitute for rulemaking and may not be used to impose new
VerDate Sep<11>2014

15:56 Jul 15, 2021

Jkt 253001

requirements on entities outside the Executive Branch. These principles were subsequently memorialized in the Justice Manual at section 119.000, https www.justice.gov/jm/justicemanual.
The second underlying document was a memorandum issued by Associate Attorney General Brand on January 25, 2018, entitled Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases the January 2018 Memorandum. The January 2018
Memorandum reiterated many aspects of the November 2017 Memorandum, and stated more explicitly that the Department could not convert guidance documents into binding rules through litigation, and that failure to comply with a guidance document should not be used as presumptive or conclusive evidence that a party violated a related statute or regulation.
That 2018 policy statement was then codified in the Justice Manual at section 120.000.
The third relevant document was President Trumps Executive Order 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents, which was issued on October 9, 2019, and published in the Federal Register the next week. See 84
FR 55235 Oct. 15, 2019. That Executive Order embodied some of the same concepts as the November 2017
Memorandum and January 2018
Memorandum, with some differences. In particular, Executive Order 13891
required, among other things, that each agency, as appropriate, build a single, searchable, online database to which the agency would publicly post all guidance documents. Executive Order 13891 also required that agencies promulgate or amend regulations to establish procedures for issuing guidance documents, including requiring nonbinding disclaimer language and the publication of significant guidance documents for notice and comment.
Executive Order 13891 also directed agencies to incorporate a series of detailed and prescriptive requirements into their regulations for the development, review, issuance, and use of guidance documents.
The two regulations that are the subject of this rulemaking were issued pursuant to the requirements of Executive Order 13891, though some of their provisions were based on the somewhat similar language of the November 2017 Memorandum and January 2018 Memorandum.
C. Executive Order 13992
On January 20, 2021, President Biden issued Executive Order 13992, which,
PO 00000

Frm 00007

Fmt 4700

Sfmt 4700

37675

among other things, revoked Executive Order 13891 and stated that agencies must be equipped with the flexibility to use robust regulatory action to address national priorities. 86 FR 7049 Jan. 25, 2021. Executive Order 13992 directed the heads of all agencies to promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing the revoked Executive Order.
D. Revocation of 28 CFR 50.26 and 28
CFR 50.27
Based on its evaluation of the regulations at 28 CFR 50.26 and 28 CFR
50.27, the Department has concluded that those regulations are unnecessary and unduly burdensome, lack flexibility and nuance, and limit the ability of the Department to do its work effectively.
Among other things, the regulations have generated collateral disputes in affirmative and enforcement litigation, and they have discouraged Department components from preparing and issuing guidance that would be helpful to members of the public. In addition, because the regulations imposed requirements on a particular category of agency documents deemed to be guidance, the regulations caused Department staff to expend significant resources determining whether each agency document, product or communication constituted guidance and was therefore subject to these regulations. The Department has determined that the rules should be revoked.
In revoking the rules, the Department is not departing from the principle that guidance documents cannot impose legal requirements beyond those found in relevant constitutional provisions, statutes, and legislative regulations. The Department also continues to believe that guidance documents should be clear, transparent, and readily accessible to the public. But these principles, and other related Department policies and practices concerning guidance documents, have traditionally been addressed through memoranda from Department leadership rather than through regulations. The Department is therefore revoking 28 CFR 50.26 and 28
CFR 50.27 in their entirety, and the Attorney General is concurrently issuing a new Memorandum setting forth the Departments policies going forward.
E. Public Comments on the Two IFRs Pertaining to 28 CFR 50.26 and 50.27
The two IFRs issued in 2020 to promulgate 28 CFR 50.26 and 50.27
were made effective upon issuance, and by their nature they did not require a pre-promulgation notice-and-comment
E:FRFM16JYR1.SGM

16JYR1